Accompanying the petition is an extract from an article written by B. Raman, who headed the Pakistan Desk at RAW, as to why Yakub Memon should not be hanged.

A group of eminent jurists, MPs, leaders of political parties and eminent individuals from different walks of life submitted a petition to President Pranab Mukherjee on Sunday to request him to consider the mercy plea against the execution of the death sentence of Yakub Memon.

Accompanying the petition is an extract from an article written by B. Raman, who headed the Pakistan Desk at RAW, as to why Yakub Memon should not be hanged.

The text of the petition by eminent persons urging Stay Against Imminent Execution of Yakub Abdul Razak Memon:

May it Please Your Excellency:

This is a mercy petition for Yakub Abdul Razak Memon, who is scheduled to be executed on 30 July 2015 as per the execution warrant issued by the TADA Court.

We, the undersigned, through this petition urge Your Excellency to stay the imminent execution so that the substantive and fresh grounds raised herein can be considered on merits.

A. Preliminary Grounds

*An International Commitment to abolish death penalty – We the signatories of this mercy petition humbly make the statement that in India death penalty cannot be imposed till such time Parliament of India decides not to abolish death penalty and the reason for the same are as under:

The universal declaration of Human Rights adopted by the General Assembly on 10.12.1948 defined certain human rights and fundamental freedoms which need to be protected. Among the subsequent human right documents, the most important are the two covenants adopted by the General Assembly in 1966: The Covenant on Civil and Political Rights and its Optional Protocol and the Covenant on Economic, Social and Cultural Rights. India became a party to both these covenant by ratifying them on 27.3.1979. There are two optional protocols to the covenant, the Second Protocol aims at the abolition of death penalty.

Article VI of Part-III of the covenant on civil and political rights lays down as under:

*Every human being has the inherent right to life. This right shall be protected by law. No-one shall be arbitrarily deprived of his life.

*In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crime.

……………….

*Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence amnesty or commutation of death may be granted in all cases.

The President of India under Article 72 of the Constitution of India has the power to grant pardon and to suspend, remit or commute sentence in certain cases. It is in this way the constitution of India permits right of appeal. Sub-clause of Article 6 of Part-III of the Covenant as referred above provides that commutation of sentence of death may be granted in all cases. In the circumstance, we will have to understand as to why “may” has been used for commutation of the sentence of death to be granted by the President. The Hon’ble Supreme Court of India in Deewan Singh Vs. Rajendra Prasad Ardevi (2007) 10 SC 528 while interpretating “may” where powers is conferred upon a public authority coupled with direction, the word “may” which connotes direction should be constitute to mean a command. In India this power of pardon is to be exercised by the President and therefore under no circumstances for empowering the President the word “shall” could have been used in the covenant but it means a command i.e. commutation of sentence of death must be granted in all cases by President, till such time Parliament of India decides that it will continue the penalty of death sentence. After signing of covenant, the Parliament of India has not considered any amendment in the Indian Penal Code for abolition of death sentence.

The second optional protocol to the International covenant on civil and political rights reads as under:

“The States Parties to the present Protocol,

Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights,

Recalling Article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and Article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966,

Noting that Article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable,

Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life,

Desirous to undertake hereby an international commitment to abolish the death penalty,

Have agreed as follows:

Article 1:

*No one within the jurisdiction of a State Party to the present Protocol shall be executed.

*Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.

Article 2:

*No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.”

As regards covenant we may submit that a covenant is a treaty and it lays down a notable step forward in the protection of human rights within the framework of the United Nations and constitutes the basic provisions of International Bill of Rights. The two covenants also demonstrate the way in which the United Nations is overcoming its earlier hesitations about the enforcement of human rights obligations. It is almost an accepted provision of law that rules of customary International Law which are not contrary to Municipal Law shall be deemed to be incorporated in the domestic law.

The plea of enforceability of various International covenant is now no longer a matter of debate but should be considered to be firmly established as a part of international law which the domestic courts are duty bound to give effect to.

*Present Petition Meets Procedural Requirements

This Mercy Petition satisfies the legal requirements applicable to a fresh mercy petition as per G. KrishtaGoud v. State of A.P., (1976) 1 SCC 157para10 and clause VII-(A) of the Procedure Regarding Petitions for Mercy in Death Sentence Cases, Ministry of Home Affairs, Government of India.

*Death Warrant fixing the date of Execution is Illegal

Yakub Memon was not given advance notice of the death warrant hearing and as a result of which he and his lawyers could not participate and contest the issuance of the death warrant. Lack of hearing makes the present death warrant void in light of the Supreme Court decision in Shabnam v. Union of India &Ors, Writ Petition (Criminal) No. 88 of 2015 (decided on May 27, 2015).

B. Fresh Grounds on Merits

Following are some very disturbing aspects of this case which make the award of death sentence of Yakub Memon as grossly unfair, arbitrary and excessive.

*Long Duration of Trial and Incarceration Suffered Till Date

Yakub Memon has served more than 20 years in prison since his arrest. His trial took 14 years to complete. While the Hon’ble Supreme Court used this long period of incarceration as a mitigating circumstance to commute the death sentences of the other 10 co-accused persons, it applied a different yardstick to Yakub. The Hon’ble Supreme Court has repeatedly held that lengthy incarceration during pendency of appeal in death cases is a significant mitigating circumstance which ought to be considered in determination of sentence. In the interests of justice we request you to give due importance to this. The government to that extent is not bound by the conclusions arrived at by the Supreme Court (See Shanker v. State of U.P. (1975) 3 SCC 851; Vivian Rodrick v. The State of West Bengal (1971) 1 SCC 468);Kehar Singh v. Union of India(1989) 1 SCC 204para 10.

*Yakub Memon is Mentally Unfit for Execution

Yakub Memon has been suffering from schizophrenia for the last 20 years which makes him unfit for execution. His mental condition has been certified by jail doctors. Schizophrenia as a mental illness has been held by the Supreme Court (Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 para 86-87) to render a convict unfit for execution. Your Excellency is required to consider the mental health of a convict before deciding his mercy petition, and can summon his medical records from the prison from the time of his arrest.

*Role in the 1993 Bomb Blasts Conspiracy

Tiger Memon and Dawood Ibrahim as the Main Conspirators

As per the case of the prosecution, the 1993 bomb blasts were orchestrated by Tiger Memon and Dawood Ibrahim to seek revenge for the demolition of Babri Masjid in Ayodhya(YakubMemon v. State of Maharashtra, (2013) 13 SCC 1 para 148, 1253). Both Tiger Memon and Dawood Ibrahim have been absconding and Yakub, brother of Tiger Memon, who was not the main actor in the conspiracy is being executed.

Commuted Co-accused played a larger role in the Conspiracy than Yakub Memon: Prejudiced on Account of being Tiger Memon’s Brother

The TADA Court convicted 100 persons and awarded death penalty to 11 persons. In appeal, the Supreme Court commuted the death sentences of all the convicts except Yakub Memon. In comparison to Yakub Memon, the 10 co-accused persons whose death sentences were commuted planted the bombs themselves and played a much more critical and direct role in the actual execution of the bomb blast conspiracy. Several of whom even travelled to Pakistan for arms training. This shows Yakub Abdul Razak Memon who is facing an imminent execution only on account of being Tiger Memon’s younger brother.

Witness in the case

Unlike the main accused, Yakub Memon surrendered before the authorities, a fact which has been confirmed on July 24 by the then officer in charge of the entire operation, Shri B.Raman. Yakub Memon is the person who has provided information about Pakistan involvement. His execution will weaken the case against the involvement of the Pakistan agencies as there are no other witnesses available.

*Death Sentence of Convicts in other Terror Cases Commuted

It is also worthwhile to note that death sentences imposed on the aides of Veerappan (convicted and sentenced to death under TADA), Rajiv Gandhi killers and Devender Pal Singh Bhullar have been commuted recently by the Supreme Court. While the mercy petitions of Verappan’s aides, Rajiv Gandhi’s three killers and Devender Pal Singh Bhullar were decided belatedly by the President, thereby giving them the claim of delay jurisprudence, the Home Ministry has moved swiftly to reject Yakub Abdul Razak Memon’s mercy’s petition. It seems that subjective factors are the basis of decisions which lead to arbitrary actions.

*Death Sentence awarded under TADA which was repealed for being Unfair and Discriminatory

Yakub Memon has been tried and sentenced to death under TADA, a special law which was repealed by the Parliament on account of it having been used to target the minorities. The Supreme Court in Vijaykumar Baldev Mishra v. State of Maharashtra, (2007) 12 SCC 687para 30 also doubted the legality of prosecutions pursued after the repeal of TADA. Given the highly compromised rule of law credentials of TADA, executing Yakub Memon will perpetuate the dark legacy of this law.

Final Plea

We most humbly request your Excellency to consider the case of Yakub Abdul Razak Memon and spare him from the noose of the death for a crime that was master-minded by someone else to communally divide the country. Grant of mercy in this case will send out a message that while this country will not tolerate acts of terrorism, as a nation we are committed to equal application of the power of mercy and values of forgiveness, and justice. Blood letting and human sacrifice will not make this country a safer place; it will, however, degrade us all.

Yours Sincerely,

Justice Panachand Jain (Retd) Justice H.S. Bedi (Retd)

Justice P. B. Sawant (Retd)Justice H. Suresh (Retd)

Justice K. P. Siva Subramaniam (Retd) Justice S. N. Bhargava (Retd)

Justice K Chandru (Retd)Justice Nagmohan Das (Retd)

Shatrughan Sinha MP Mani Shankar Aiyer, MP

Ram Jethmalani, MP Majeed Memon, MP

Sitaram Yechury, MP, G.S, CPI(M) D. Raja, MP, Secretary, CPI

K.T.S Tulsi, MPH.K. Dua, MP

T. Siva, MP

Prakash Karat, CPI(M), Member, Polit Bureau

Dipankar Bhattacharya, General Secretary, CPI(ML)-Liberation

Brinda Karat, CPI(M), Member, Polit Bureau

N. Ram, Senior Journalist

Prashant Bhushan, Senior Lawyer

Jagmati Sangwan, General Secretary, AIDWA

Kavita Krishnan, Secretary, AIPWA

Annie Raja, General Secretary, NFIW

Tushar Gandhi, Mahatma Gandhi Foundation

M. K. Raina, Film & theatre artist

Anand Patwardhan, Filmmaker

Naseeruddin Shah, Actor

Mahesh Bhatt, Filmmaker

Lalit Vachani, Filmmaker

Ram Rahman

Vivan Sundaram, Artist

Prof. Prabhat Patnaik

Prof. C. P. Chandrasekhar

Prof. Utsa Patnaik

Ritu Diwan, Former Director & Head Dept of Economics, Mumbai University

Jean Dreze

Pamela Philipose, Journalist

Achin Vanaik

Adv. Flavia Agnes, Director, Majlis Legal Centre, Mumbai.

Parthiv Shah

Prof. Irfan Habib

Prof. Arjun Dev

Prof. D. N. Jha

Prof. Kalpana Kannibaran, Hyderabad

Indira Jaisingh, Former, Addl. Sol. General

Kirti Singh, Former Member, Law Commission

Vrinda Grover, Lawyer

Prof. Abhijit Sen

Dr. Imrana Qadir

Dilip D’souza, Author

Ravi Chelam, Biologist and Conservationist Scientist, Bengaluru

Prof. Sohini Ghosh

Associate Prof. Sabina Gadihoke

Smita Gupta, economist

Prof. Jayati Ghosh

Prof. Jagmohan Singh, Coalition Against the Death Penalty, Ludhiana

Shabnam Hashmi, Anhad

Manisha Sethi, Academic

Prof. Ved Kumari

Biraj Patnaik

Virginia Saldanha

Prof.Madhu Prashad

Anees Azmi

Rahul Saxena

Anjali Mody

Dr. Nikita Sood, Oxford University

Rahul Roy, Filmmaker

Dr. Ayesha Kidwai

Prof. Harbans Mukhia

Adv. Kamayani Bali Mahabal

Binoo John (senior journalist, author)

Nachiket Udupa

N. Jayaram

Prof. Pulin Nayak

Prof. Kamal Mitra Chenoy

Angana Chatterjee

Deep Joshi

Mr. Tarun Bhartiya, Shillong

Ms. Angela Rangad, Shillong

Sanjay Karkala

Gitanjali Prasad

Vivek Sundara

Arundhati Dhuru NAPM

Sandeep Pandey, Socialist Party

Dr John Dayal, Member, National Integration Council

Chetan Mali

Vidula Ramabai

Nandini Sundar, Professor, Delhi School of Economics, Delhi University

Annexure: Article written by B. Raman, who headed the Pakistan Desk at RAW, as to why Yakub Memon should not be hanged.

Memon brothers and the Mumbai blasts

I have been going through a moral dilemma in my mind ever since I read in the media about the sentencing of Yakub Memon to death by the court, which tried the accused in the Mumbai blasts of March 1993, and his tantrums in the court after the death sentence was pronounced.

Right though the trial, he has been claiming that he was not arrested in Old Delhi as stated by the prosecution, but in Kathmandu, Nepal. This was disputed by the prosecution, which asked for the severest penalty against him and others, who were sentenced to death. All those sentenced to death have the right of appeal to the higher court and to petition the President of India for clemency if their appeals are rejected.

I have been repeatedly asking myself: Should I write this article? Would I be a moral coward if I did not do so? Would the entire case get unravelled if I wrote it? Would the undoubtedly guilty escape punishment as a result of my writing it? Would my article be adversely viewed by the court? Would I be committing contempt of court? It is impossible to have definitive answers to these questions. Ultimately, I decided to write this in the belief that it is important to prevent a person, who in my view does not deserve to be hanged, from going to the gallows.

As the head of the counter-terrorism division of the Research and Analysis Wing (R&AW), I had dealt with the external aspects of the investigation between March 1993 and my retirement on August 31, 1994. I like to believe that my work, with the help of some outstanding field officers of R&AW, was highly appreciated by P V Narasimha Rao, the then prime minister, who described our contribution to the investigation of the external aspects as worth its weight in gold.

I was disturbed to notice that some mitigating circumstances in the case of Yakub Memon and some other members of the family were probably not brought to the notice of the court by the prosecution and that the prosecution did not suggest to the court that these circumstances should be taken into consideration while deciding on the punishment to be awarded to them. In their eagerness to obtain the death penalty, the fact that there were mitigating circumstances do not appear to have been highlighted.

It was an outstanding piece of investigation by the Mumbai police and the Central Bureau of Investigation, with the excellent help of the IB. The nation ought to be proud of the officers who handled the investigation and prosecution, for their outstanding success in painstakingly collecting all the relevant evidence and placing before the court a watertight case.

The aura surrounding them would have shone even brighter had they taken the initiative in underlining before the court that there were some mitigating circumstances and that keeping those circumstances in view, they would refrain from asking for the death penalty even though perpetrators of such barbaric acts of terrorism deserve the death penalty.

The prosecution was right in saying that Yakub was arrested in Old Delhi. Yakub was right in claiming that he was not arrested in Old Delhi. In July 1994, some weeks before my retirement, he was informally picked up in Kathmandu, with the help of the Nepal police, driven across Nepal to a town in Indian territory, flown to Delhi by an aircraft of the Aviation Research Centre and formally arrested in Old Delhi by the investigating authorities and taken into custody for interrogation. The entire operation was coordinated by me.

He had come to Kathmandu secretly from Karachi to consult a relative and a lawyer on the advisability of some members of the Memon family, including himself, who felt uncomfortable with Pakistan’s Inter-Services Intelligence, returning to India and surrendering to the Mumbai police. The relative and the lawyer advised him against surrender due to a fear that justice might not be done to them. They advised Yakub to go back to Karachi.

Before he could board the flight to Karachi, he was picked up by the Nepal police on suspicion, identified and rapidly moved to India.

He cooperated with the investigating agencies and assisted them by persuading some other members of the Memon family to flee from the protection of the ISI in Karachi to Dubai and surrender to the Indian authorities. The Dubai part of the operation was coordinated by a senior officer of the IB, who was then on deputation to the ministry of external affairs. Neither the R&AW nor I had any role in the Dubai part of the operation.

The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender constitute, in my view, a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.

There is not an iota of doubt about the involvement of Yakub and other members of the family in the conspiracy and their cooperation with the ISI till July 1994. In normal circumstances, Yakub would have deserved the death penalty if one only took into consideration his conduct and role before July 1994.

But if one also takes into consideration his conduct and role after he was informally picked up in Kathmandu, there is a strong case for having second thoughts about the suitability of the death penalty in the subsequent stages of the case.